Seasonal Employers Fill Supplemental H-2B Cap

But carve-outs for aliens from Haiti and the Northern Triangle remain available

By Robert Law on June 3, 2022

Seasonal employers wasted no time claiming the additional temporary, non-agricultural foreign workers that Department of Homeland Security (DHS) Secretary Alejandro Mayorkas made available. That statement requires some qualification as there remain H-2Bs available for alien workers from Haiti, El Salvador, Honduras, and Guatemala. If history is any indicator, these additional visas will go unused because seasonal employers prefer hiring Mexicans and Jamaicans.

On March 31, the last day of the first half of the fiscal year (FY), Mayorkas announced that he was more than doubling the visa allocation for the second half of the FY before the statutory cap was met. Of the 35,000 supplemental H-2Bs Mayorkas made available, 23,500 visas were available to “returning workers” while 11,500 were earmarked for aliens from Haiti and the Northern Triangle countries who do not have to be “returning workers”.

I criticized the decision at the time, as I do every time Mayorkas has exercised this delegated authority, specifically noting:

The timing of this announcement is significant because many second-half employers are not even eligible yet to petition for H-2B workers and there is no indication that the second-half cap was already met. The H-2B program nominally has a labor market test, known as the Temporary Labor Certification (TLC), run by the Department of Labor. This process is free for employers to file and loophole-ridden to such a degree that DOL essentially rubber-stamps every TLC that comes across its desk. Those employers who haven’t even begun the TLC process are now armed with the knowledge that more cheap foreign workers are available, reducing any incentive to look for American workers. [Emphasis added.]

More than six weeks later, DHS finally published the Federal Register notice that actually made those visas available. In response, I wrote that the delayed publication should disqualify all seasonal employers with April 1 through May 15 start dates. As I explained, the H-2B supplemental authority requires employers to attest that they will suffer irreparable harm if they do not receive all of the sought-after H-2B workers. No employer whose season has already started could legitimately satisfy this requirement, meaning that the supplemental H-2Bs should only be available prospectively to “late season” employers — the very group that Congress has expressed concern about because of their inability to get H-2B workers based on how the statutory formula for allocation operates.

I say “should” in the above sentence because I expressed skepticism that Biden political appointees would actually apply the supplemental authority in this manner. To my surprise, it is possible that U.S. Citizenship and Immigration Services (USCIS) properly applied the statute. An interesting line in the press release announcing that the “returning worker” supplemental cap was met caught my eye. DHS writes, “Because no properly filed petitions were received on the date of the temporary final rule’s publication, we began accepting H-2B petitions on May 19.” Now before I give the Biden team too much credit, this line could mean several things and there is nothing in the release that expressly states that USCIS only considers prospective start dates as “properly filed”.

Again, it is unsurprising that seasonal employers captured all of the “returning worker” H-2Bs within the first five days, triggering a lottery for the distribution. It is similarly unsurprising that some (all?) of the carve-outs for foreign workers from Haiti and the Northern Triangle remain available. David North put it best in a May piece about a similar structure of the previous H-2B supplemental cap: Efforts to get H-2B employers to use Northern Triangle workers sputter — a prophecy fulfilled.